April 3, 2008

It's surprising to hear how little he thinks of his constituents, who had the sense to depose one of the court's ultra-liberal justices and in the process helped toughen the standards for judicial accountability.

The election was a referendum on Louis Butler and the high court's sharp political turn. Justice Butler was appointed by Governor Doyle, a Democrat, to fill a vacancy in 2004.....

But Mr. Butler was required to stand for election, and on Tuesday he narrowly lost to district court Judge Michael Gableman. Mr. Gableman's 10-year term will begin in August and probably tip the balance of the court to a 4-3 conservative majority.

... The hotly contested race supposedly shows the need for "merit selection" or public financing in judicial elections. But both sides leveraged roughly the same amount of money, and voters had a choice of two distinct legal philosophies.

Should the people directly affect judicial ideology through elections, or is it better to restrict them to picking the governor and then allow the governor's ideology to affect judicial appointments? Are there many people who prefer a chief executive — governor or, at the federal level, President — with one political ideology but want judges with another? For example, you might want a liberal governor because you favor his taxing and spending policies and want him to veto socially conservative bills but still want the judges to adhere to a conservative approach to things like expanding tort liability and requiring the recognition of gay marriage. If you do, then it's a problem to let the governor's ideology flow into judicial appointments.

Do we like the way it's easier to believe that a governor (or President) has picked judges because of their neutral qualifications or is it better to have elections that make people see the ideology of judges? It's hard to picture elections ever moving us closer to choosing judges because of their lofty credentials and adherence to neutral principles, but it's not fair to blame the voters if they are savvy enough to see that candidates are ideological and to vote with their eyes open.

ADDED: More here, asking what does all this means for the next Wisconsin Supreme Court election.

No, read the article, Madison Man. It talks about the ads. Everyone knows about the ads, but: 1. crappy ads were run against both candidates and 2. the candidates were unable to control the ads. So anyone who voted to react to the badness of ads was not thinking straight.

What's the shock here? Wisconsin voters rejected Butler in 2000. Doyle forced Butler on them through a vacancy, flipping the court to the left and they proceeded to do exactly what critics charged. What surprise that at the next opportunity, the voters said "no, we really meant it in 2000, we don't approve of this." It's only a quirk of when other Justices' terms were expiring that the voters didn't get to undo Doyle's slap in their face earlier.

I don't myself approve of electing judges. But if that's the system, that's the system, warts and all. Is it dysfunctional enough to change is the only question.

Ann said..."It's hard to picture elections ever moving us closer to choosing judges because of their lofty credentials and adherence to neutral principles...."

It seems to me that legal process - neutral principles and all - is still a valid judicial philosophy.

The tragedy remark has all the hallmarks of a cherry-picked quote. From what I can tell, here's what Doyle said: It is a tragedy that such a fine judge and good human being was trashed during the campaign. Justice Butler has served with distinction and honor on the Wisconsin Supreme Court, and I thank him for his fairness, his sense of justice and his lifelong commitment to public service.

A seat on the bench is not a sinecure, and justices who abuse or contort the law must sometimes answer for their actions. This is a statement I agree with -- but it's a little distressing to see who is ponied up as an alternative. I'll be curious to see how he handles cases that WMC is heavily invested in.

Governors have to moderate their inclinations if they hope to get reelected. But, because judicial appointments are one step removed from their legislative agenda, I think they would be free to pick more extreme judges (Exhibit A: Justice Butler). I think it's better to let the voters pick judges.

Justices have an impact on people's lives so why shouldn't they periodically have to seek reelection. Once every ten years sounds good. And Justices have no one to blame but themselves as they have taken a more interventionist role.

I have to say, as a New Yorker, that Wisconsin's judicial election system looks to be a big improvement over NY's appointment system. It provides for accountability to the people and yet moderates it (via a long judical term length). These "unbiased" selection committees end up being fronts to provide the veneer of respectibility to a partisan nomination.

"Congratulations to Justice Gableman and the voters of Wisconsin for proving that the time-tested tactics of race baiting and fear mongering are still viable election strategies in the twenty-first century. With his colleague Justice Ziegler, Justice Gableman has helped ensure that future candidates for the high court will not waste our time with things like experience, truth, or qualifications, and will be limited to the blindly ambitious, ethically challenged, and politically connected. Maybe eventually the bought and paid for puppets of the rich and powerful can successfully manipulate the ignorant masses to dump impediments to a better future like the Constitution. Then the happy serfs can labor for their new feudal masters by day, spend their evenings blissfully immersed in the perfect combination of rhetoric and fantasy flickering from their imported television sets, and make this country truly great once again. God Bless America."

I am frankly shocked that a law professor at my alma mater would sit idly by while a candidate for the state supreme court essentially expresses the opinion that no person who does criminal defense work is qualified to be a justice on our supreme court, and, if that weren't enough, pulls a 23 year-old black criminal defendant's mug shot to demean Justice Butler. I'm a moderate, but I was shocked. The 3rd party ads are one thing, but the candidates own advert doing so was vile.

I didn't follow the race, but it is nice to see these judges lose their elections from time to time (especially judges who believe in legislating from the bench). It keeps them honest. So many state judges take their jobs for granted (from both parties) knowing that they will run unopposed in virtually every election.

I think Mike hit it on the head. Governor's (or the President's) judicial appointments are indeed one step removed from their legislative agendas. If voters realize that up front, then they can make a decision with that as a factor in picking a candidate.

I don't care so much about election vs. appointment in terms of ideology since the chances are good that either method will follow the same trends - a conservative electorate will end up with conservative judges, and vice versa.

The problems we see with elected judges is in corruption. To get elected and re-elected, they need money, and they get it from people who will end up with interests before their court. They pressure their court employees to raise money and campaign for them. They become beholden to a constituency.

But appointments don't make me any more comfortable. Our new governor ran on promises of reform, yet right now he's appointing all sorts of campaign contributers to various boards all over the state. Some of his choices have ethics problems from past service; some are clearly unqualified for the decisions they'll be making. I expect he'd appoint judges based on quid pro quo politics as well.

I don't care so much about election vs. appointment in terms of ideology since the chances are good that either method will follow the same trends - a conservative electorate will end up with conservative judges, and vice versa.

The problems we see with elected judges is in corruption. To get elected and re-elected, they need money, and they get it from people who will end up with interests before their court. They pressure their court employees to raise money and campaign for them. They become beholden to a constituency.

But appointments don't make me any more comfortable. Our new governor ran on promises of reform, yet right now he's appointing all sorts of campaign contributers to various boards all over the state. Some of his choices have ethics problems from past service; some are clearly unqualified for the decisions they'll be making. I expect he'd appoint judges based on quid pro quo politics as well.

I don't believe election of judges is a good thing, since it does make the election one of ideology and not qualification. It is a good idea to have the people vote on whether they remain on the bench. For qualification, only people like Ann could properly understand if their history shows good judicial behavior or not. 99% of the public hasn't a clue. Yet, after five years or so, the public can sense if a justice has ventured down a path different from the general values of the public, and could remove the judge from the bench. The governor could then select another, knowing their will be legislative scrutiny and hoping to avoid the embarassment just endured.

Joe, I agree that your quote is interesting, because it proves the first rule of propaganda: accuse your enemy of doing what you're doing. Thus, progressives (of all people) claim that conservative judges are out "to dump impediments to a better future like the Constitution" is indeed "interesting." I'm reminded of a post by Reed Hunt (I debunked it here) where he fumed that "[i]n an age of rising inequality and irresponsible governance, it is critical that Congress not tolerate the Court's roadblocks to progress." The Constitution is frequently both a roadblock and impediment to one man's idea of progress, because progress can really only be measured neutrally as change - my progress might be your rot and vice versa. The constitution represents an institutional settlement to let us fight it out.

As to the ads - if you make judges an elected office, don't express shock that people run political campaigns for the office. It's like buying a dog and complaining that now there's dog hair all over your house. If you want a dog, learn to live with the hair; if you can't live with the hair, don't get a dog!

Trumpit, First, I take no position either way on Global Warming. I'm neutral. Second, mostly everyone agrees that half the electorate is dumb. The disagreement is over which half. ;)

One of the problems with electing judges - I should pause to note that the problem Beth noted above is serious and intractable, too - is that while everyone agrees what the job of a legislator or a governor is (they may differ on what purposes they want the powers of those jobs to be used for, but they agree roughly on the power and nature of the office), but there isn't consensus on what judges do. To just say you want "qualified" judges who have "merit" isn't to say, really, remotely enough. Let me take an example that cuts against my own side, although this goes equally (if not more so) for the other side. Conservative voters say that they want conservative judges, they want strict constructionists. Well, most conservative judges aren't strict constructionists, and the one context in which everyone agrees that a statute should be strictly construed, penal statutes, produces a liberal result. And then people express shock when conservative judges don't reach politically conservative results because the methods associated with legal/judicial conservatism don't always produce politically conservative results (spot test, everyone: what was Justice Scalia's first opinion for the court, and what was the reaction among law-and-order conservatives? Or for a more recent example, what was the first thing Justice Alito did on joining the court, and how did conservataives react?). I think most voters, liberal and conservative alike, are more interested in getting results they like than they are in judicial philosophy, in legal process, in procedural legitimacy and institutional settlement.

Fighting Bob Lafollette believed in the electorate. Governor“Frankenstein veto” Doyle doesn't like voters doing things like exercising judgment, unless they vote the way they are supposed to, because he knows better.

Mike - indeed. The guts of the Constitution is an institutional settlement - a set of demarcations of authority and processes by which We The People said "here is how we are going to make decisions, and here are the basic contours of each institution's boundaries." The Constitution's really about federalism and separation of powers. Rights - subtractions from the general grant of power - are in the main an afterthought. I don't find what UW and some other places call "conlaw 2" ("rights" conlaw) nearly as interesting as "conlaw 1" ("real" conlaw, the structural stuff), which is perhaps why I find myself more and more interested in the federal courts class.

All close elections are suspect. Why? Because 50% of the population has an IQ of less than 100, and probably 40% of the actual voters do. People with an IQ of less than 90 shouldn't be allowed near a voting booth; they're too dumb to make an intelligent decision. That is one reason why Bush got elected twice and this country is in such a mess. Democracy has its limitations. Then there are those people who vote AS IF they had an IQ of less than 90. Those are the truly scary people who can be found commenting frequently on this blog. They are blinded by ideology and always vote for the right-winger no matter how stupid or dangerous. Remember millions upon millions of people voted for Bush and Hitler. Therefore, I am pessimistic about the fate of humanity even if global warming were a fantasy.

I agree that judges shouldn't be subject to the capriciousness and suggestability of the electorate to Willy Horton type slanderous political ads. Direct democracy has its drawbacks and limitations.

Trying to understand an issue by reading a WSJ oped is like trying to figure out if I'm gaining weight by looking in a funhouse mirror. I have no idea if the incumbent's positions were objectively reasonable or not.

But, in California, after a concerted campaign some years ago, those Supreme Court justices who routinely voted to strike down the death penalty were voted out. This is a reasonable check on the power of those who answer to nobody else. There are two problems with deferring to the judgment of legislators: once elected, legislators vote the way they think is best, irrespective of the desires of the electorate; as seen time and again on the USSC, the way a justice will vote over their time in office could not have been predicted at the outset.

"Then there are those people who vote AS IF they had an IQ of less than 90. Those are the truly scary people who can be found commenting frequently on this blog. They are blinded by ideology and always vote for the right-winger no matter how stupid or dangerous."

As a scientist with substantial academic credentials who is deeply skeptical of global warming and who voted twice for Bush and would do so again faced with the same choices, I'll point out that I tend to vote Republican but am not by any stretch of the imagination an ideologue. And the last time my IQ was tested (as though such tests mean anything at all), it was over 160. You can claim to know a lot about me from this information, but you'd be talking out of your ass ('cause your mouth knows better). I would not go so far as to assume you always vote for the left-winger, no matter how stupid or dangerous.

The election vs. appointment argument is yet another instance of talking about substantive issues as if they were susceptible to solution by merely formal arrangements. That almost never works, but nonetheless it seems to be the sort of thing that people love to spill ink over.

The basic issue is the role of courts in a democratic society. The Brits have dealt with that by making the courts entirely subject to control by Parliament. As a consequence, the Brits just never get into these kinds of squabbles; a judgeship often caps a distinguished career at the Bar, but it's not a political office in any important sense of the term. In Europe proper, that problem is handled a bit differently but the result is basically the same. The Europeans tend to grant their highest courts the power to strike down legislation in very limited circumstances, but almost no power to affirmatively compel the adoption of any particular policy (e.g., the French Cour de Cassation, the German Constititional Court). The Europeans recognize that "cassation" is a fundamentally political power, but they all have memories of dictatorial regimes and seem to welcome a (small) check that might ward off another such mistake.

In the US, we grant our courts (more precisely, we have acquiesced in the courts' long-standing practice of exercising) political power. To paper over the obvious anti-democratic aspects of that practice, we have developed the odd preference of pretending that, when courts are acting politically, they are nevertheless exercising a judicial function (we even call the process whereby the courts do so "judicial review" and then worry about the "level of scrutiny"). Madness, really, but of such long standing that it has become so habitual to think of a "supreme court" in those terms that few even notice its oddness anymore. The real problem -- it is real enough that it has the potential to destroy the judiciary, and be assured that judges are acutely aware of that -- is the idea of allowing a small number of unaccountable lawyers to exercise enormous power over fundamental policy choices impacting the entire society. The only real constraint in the American system is the self-restraint shown (occasionally) by the judges themselves. Every now and again, when self-restraint fails or judicial hubris takes over, the electorate notices and demands that "something be done." The defeat of Justice Butler seems to fit that pattern -- self restraint doesn't seem to have been the hallmark of his conception of the judicial role.

Anyone who thinks that the election vs. appointment stuff holds the key to solving the problem here is just kidding themselves. It is equally bizarre to claim that either system is "better" than the other -- there is no common scale to measure such things or against which to form such judgments. (One commenter refers to NY's current practice of appointing judges, which he laments in comparision to Wisc's electoral system. NY used to elect judges -- Brandeis, Cardozo and many other distinguished judges were elected here -- but changed because the politicos reacted badly when Fuchsberg (a hugely successful tort lawyer) won a contested election to NY's highest court in the early '70s.)

The problem instead stems from two basic facts: First, there is no good reason to allow a small group of lawyers to exercise political power; and, second, most people are all for the present system when courts impose policies with which they agree, and only care about the lack of political legitimacy when the courts are imposing some political policy with which they disagree.

It's really a reflection of American's devotion to pragmatism and concomitant lack of interest in matters of democratic principle. Pragmatism makes for messy compromises. That's what we've got.

Original Mike said..."I, for one, want strict constructionists, not conservative results. But I imagine I'm in the minority."

You're certainly in a minority if you take that term seriously, because as I said above, you will be hard-pressed to find a judge who thinks of themselves as a strict constructionist. Justice Scalia, for example, calls the theory a "degraded form of textualism that brings the whole theory into disrepute" (that's from memory but nearly verbatim), and if you believe revealed preference over mere words, just look at the court's sovereign immunity jurisprudence.

But on the other hand, you're by no means in a minority in saying that's what you want. It's just that that isn't what you want. It seems to me that, for better or worse, "strict construction" is a political term of art, a buzzword used to refer to a generally conservative judicial philosophy, regardless of its actual meaning in legal discourse, or any coherent meaning that could be assigned to it.

As Scalia says, texts should be construed neither strictly nor loosely, but reasonably. And what (most) lay people who say they want "strict constructionists" or similar, what they really mean (I think, at least) is that they want judges who will bring a conservative's idea of what is "reasonable" to that task.

"The problem instead stems from two basic facts: First, there is no good reason to allow a small group of lawyers to exercise political power; and, second, most people are all for the present system when courts impose policies with which they agree, and only care about the lack of political legitimacy when the courts are imposing some political policy with which they disagree.

It's really a reflection of American's devotion to pragmatism and concomitant lack of interest in matters of democratic principle. Pragmatism makes for messy compromises. That's what we've got."

Superb analysis. The courts are simply an instrument by which the elite can do an end run around democracy and impose their minority will.

As a lifelong Madison and ex-liberal, I watched the local media coverage of the Butler/Gableman contest with amusement. Every picture of Gableman was chosen to make him look satanic. And the "years of experience" portion of the candidates bio summaries were parsed out to make Butler look more experienced. i.e. Gableman had 4 years here, 6 years there, but Butler had "10 years of experience". That type of thing is so typical for this town and the piss-poor media we must endure locally. It truly insults the intelligence. I was so heartened by the fact that the conservative won, even after being "thrown in a privy-hole" (my favorite quote from Zora Neale Hurston). Listen up Wisconsin State Journal and Capital Times AND GOVERNOR DOYLE (the worm): people are on to you.

Simon - I'm not a constitutional scholar, nor even a lawyer, so my views are unsophisticated. My meaning is that I do not want decisions based outcome, but rather based on what the Constitution says. And I understand that that is open to interpretation, but that's what I want the Justices' discussions to be about: what does the Constitution say.

Trumpit said... All close elections are suspect. Why? Because 50% of the population has an IQ of less than 100, and probably 40% of the actual voters do. People with an IQ of less than 90 shouldn't be allowed near a voting booth; they're too dumb to make an intelligent decision.

I did not know you were the spawn of Hitler and Goebbels. Where is your proof? Where are these stats you provide listed, so that the majority of the population can actually see how stupid they actually are? You are an insult to the human race! There were people like you in this country at one time. They were Southern Sheriffs and politicians who thought that Blacks were too stupid to vote. Time has passed you by Trumpit. It is hoped that no politicians who hold your views ever get elected. You are living proof that education is wasted on certain people.

1970_baby: What I found "amusing" when talking to friends in Madison; many were incensed at the money WMC was spending on Gableman's behalf, but when I asked them about the trail lawyer and union money spent on Butler's behalf they didn't even know what I was talking about. Not surprising, since it received little to no coverage by the Madison media.

Mike, that's fine, and I think that's essentially the same thing that most people (me included) would say they want in a judge. My point's just to highlight that there's a gulf between how that term is used in popular political discourse and what it means. If strict construction were taken seriously, for example, the First Amendment could only be violated by a law passed by Congress - nothing else. No one thinks that's sensible, including those who say they want "strict constructionists." The difficulty is that you're stuck for what to call what you want - you want someone with a conservative judicial philosophy, but you don't want to imply that means judges who get conservative results. So what terminology to use? At conference I was at recently, Justice Markman of the Michigan Supreme Court suggested that there's a real divide between what he calls "interpretivists," on the one hand, and instrumentalists on the other, i.e. between those who think judges should read an authoritative text - be it a statute, a constitution, a precedent, whatever - and try to determine what the law is, on the one hand, and on the other, those who want to use the courts to figure out what's wrong in the world, what's the most just result in this case, how can these things be put right and how can I remove barriers to a decision saying that. The latter is basically the position of most so-called progressives (not all), and the former is basically the position of most conservatives (not all). Hence, you get a partisan break in elections even on a nonpartisan issue.

I agree that judges shouldn't be subject to the capriciousness and suggestability of the electorate to Willy Horton type slanderous political ads. Direct democracy has its drawbacks and limitations. 10:47 AM

I do wish that people would put that Horton story away. When you look at the judgment that Dukakis used to support letting a murderer out on furlough and then when he left the state and terrorized people said that it was a good policy and has not to this day apologized to those families who were terrorized for what happened, it is a fair campaign issue. When you look at the fact that the person who first framed the issue you are looking at Algore. It is and was a fair issue and there was no problem with it at all.

As to this election, the people spoke on Judge Butler twice and rejected him twice. That should put that issue to bed as well. He was appointed by a governor even after the people rejected him the first time so the people rejected him a second time. Now let the courts get back to doing their job.

As to the ads, crappy ads are out there for all elections and all candidates. How many of them come direct from the campaigns and how many of them come from other sources. Go back to 2004 and the Kerry campaign. Follow the trail of those working on the campaign from the campaign itself to the 527 groups and then back to the campaign and back again to the 527 groups etc. I am sure the same thing happened to the republican campaign as well. How do you propose to stop it.

Slightly off topic, but do remember when the local paper here used to have a "sound off" column, where people would speak there peace in the form of a voice mail message that would be printed in the paper? Its gone now, and I am guessing its because people weren't saying enough liberal things. Thats my theory.

Dick said: As to this election, the people spoke on Judge Butler twice and rejected him twice. That should put that issue to bed as well. He was appointed by a governor even after the people rejected him the first time so the people rejected him a second time.

That's an excellent point that has been lost/ignored in the angst over Butler's defeat.

1970_baby: Not sure your theory is right. It's the media, after all. If people aren't saying the "right" things, what's to prevent the paper from making them up? It's not like they haven't done it before.

The election of judges bothers me at one level, but having been one of those to boot Rose Bird from office in California, I believe some mechanism is necessary to forcibly remove extremists from the bench. (The lack of accountability is one of the flaws in our system of government. Term limits of judges at all levels, including the US Supreme Court, might be another solution.)

Because 50% of the population has an IQ of less than 100, and probably 40% of the actual voters do. People with an IQ of less than 90 shouldn't be allowed near a voting booth; they're too dumb to make an intelligent decision.

Spoken like a true progressive. Be careful what you wish for there Trumpit. You might come to find out that the liberal intelligentsia doesn’t make up the biggest voting block for your party. Quite a few people demonstrated that when they couldn’t figure out a simple ballot 8 years ago.

Also, I find that people who tend to hurl IQ around (with the implication that theirs is oh-so-impressive) are sort of adolescents who talk about size, if you get my meaning, as if equipment is the best measure of effectiveness.

Trumpit notes: "Direct democracy has its drawbacks and limitations."Indeed it does which is why, at the federal level at least, the framers created a Republic. That at least seems to be the thinking in the Federalist Papers.

Roger said..."[Direct democracy has its drawbacks and limitations,] which is why, at the federal level at least, the framers created a Republic."

Indeed. Criticizing Justice Breyer's attempt to engraft a democracy-enhancing presumption onto the original understanding of the Constitution, Judge Posner observed that the reason that "'[t]he primarily democratic nature of the Constitution’s governmental structure has not always seemed obvious' ... [is that] that the structure is not 'primarily democratic.' It is republican, with a democratic component. The Constitution’s rejection of monarchy (no king), aristocracy (no titles of nobility), and a national church (no religious oaths of office) was revolutionary; but the governmental structure that it created bore no resemblance to that of ancient Athens and was, and remains, incompletely democratic." Richard Posner, Justice Breyer Throws Down the Gauntlet, 115 Yale L.J. 1699, 1702 (2006) (quoting Stephen Breyer, Active Liberty 21 (2005)).

"Retain the electoral college and repeal direct election of senators!"

Consider IQ has risen 20 points (compared to the original tests not current norms) over the last century.

So the IQ that would have bee acceptable 100 years ago would have been 110. Now how was that originally achieved? Property ownership was a voting rqmt. Not perfect but better than letting just any one vote.

Of course we are way more progressive now and any one can vote.

I also agree that choosing Senators by popular vote was another "progressive" mistake. The Democrats/progressives believe in too much democracy.

We are pretty much stuck with it. Fortunately we are getting smarter or the results would be really bad.

Government was originally for the rich and powerful. Which was a good thing. It helps secure property rights which are essential for business.

If you consider republican "democracy" a safety valve to prevent revolutions (which are bad for business) you will get the true nature of politics.

Our current system with so few paying taxes is the equivalent of two wolves and a sheep deciding what is for dinner. Our great advantage so far is that we have grown the economy faster than the wolves could chew it up.

The 401k plans are also good because they give people a stake in business.

Had we not had all the social programs we have in place our economy would be growing at a rate of 10% a year vs the current 3% (Milton Friedman among other economists think [thought] this was true.

So how much larger would that make our economy over a 50 year period? About 25 times larger. If the bottom 20% only got 1/10th of the gain they would be 2.5 times richer. i.e. a $20,000 a year income would be $50,000 a year.

Ann, this is dishonest. The Journal claims the election was decided based on Butler's stances on corporate liability. The right would desperately like to believe this and this is why WMC bankrolled Gableman but, had Gableman actually run publicly on this issue, he'd probably have lost. Gableman's actual campaign was one of the most dishonest and vitriolic in the history of any public election in this state. It focused on a dubious connection between the role of the Supreme Court and criminal justice, and defamed the role of public defenders. He used scare tactics and a liberal sprinkling of the right's favorite new, meaningless slur, "Activist."

As for you claim that surrogates of both candidates ran smear-ads completely out of the candidates' control, nonsense. The most dishonest, objectionable ad of the entire race was run by Gableman's own campaign. I presume he at least controlled that.

rying to understand an issue by reading a WSJ oped is like trying to figure out if I'm gaining weight by looking in a funhouse mirror.

The big problem with the Wall Street Journal's editorial section is that they bury it way inside the paper, rather than putting it right there on the front page like the New York Times does. They should be more considerate of their readership!

Activist is not new nor is it a slur. I is a sad fact of life. Conservatives and legal scholars of all persuasions have been debating and complaining about judicial activism for thirty years that I know of. The discussion has probably been gong on longer.

Are there many people who prefer a chief executive — governor or, at the federal level, President — with one political ideology but want judges with another?

There seem to be enough of them in North Carolina. The people of the state vote for Democrats for Governor (and almost all of the Council of State-- most of the Executive Department heads are elected, including Education, State, Agriculture), but consistently for Republican Court of Appeals and Supreme Court justices.

It isn't new, but it no longer has the meaning that it bore when coined in the middle of the last century. When coined, it was used in the sense that some liberals (I'm thinking Paul Gewirtz, Lori Ringhand and Cass Sunstein, among others) now want to use it in: Justices like Black and Jackson who were less inclined to defer to the legislature, as compared to Frankfurter who was more inclined to restraint. That use died out, and was resurrected later by conservatives, whereupon it took on its present connotations in modern political discourse, wherein it essentially means judges who substitute their personal preferences for what's in the text. Within the modern sense of the term, it's meaningless (if not outright obfuscatory) to talk, a la Sunstein, about conservatives being judicial activists because they're more willing to strike down statutes, because if judicial activism means ruling on one's personal preferences rather than on what the Constitution says, one can do that by deferring to Congress as well as by overriding Congress. Thus, upholding an unconstitutional law can be judicial activism (within the modern sense of the term) as much as striking down a constitutional law - Kelo provides an apt example.

In the modern sense, however, it's assuredly a slur. It's an insult meant to imply the judge is exceeding the bounds of their office.

I agree with Peter Gruett and Joe Veenstra. As a cheesehead, I've been here through the ads and talk radio shows. These men accurately point out that a calculated implication from Gableman's defenders was that to defend an accused person is reprehensible.

I understand that Ann Althouse, with a sinecure at a Wisconsin university, believes that corporations need better treatment by our courrs. Fine. But she must also explain why public defenders should be ashamed of themselves.

Amen. I'm gonna invest my retirement funds in subprime mortgages. If the homebuyers pay, I win; if they don't, at least the government won't let me lose.

I suggest you take a look at the performance of mortgage-backed securities over the last year or so if you think the people investing in them haven't "lost". The Bear Stearns investors, for example, lost essentially all of their investment -- around 94% of it. That's *after* the government "bailout".

But she must also explain why public defenders should be ashamed of themselves.

People who defend criminals* for a living can be expected to be more sympathetic to the interests of criminals. Even though the role of defense attorney is a necessary one, it is entirely understandable that the public might not want a judge who is sympathetic to the interests of criminals.

Sure, they might say to themselves "if I was ever accused of a crime, *I* would want a good attorney and a sympathetic judge". But the average person is a lot more likely to BE murdered, raped, or robbed than he is to wind up on trial for murder, rape, or robbery -- which means that the average person sympathizes with the folks who prosecute accused criminals, not the folks who defend them.

"Should the people directly affect judicial ideology through elections, or is it better to restrict them to picking the governor and then allow the governor's ideology to affect judicial appointments?"

That's the wrong question. The right question is, "How long should judges be allowed to serve?" If judges served a single term of reasonably finite duration which could not be extended (i.e., at the end of his/her term the judge would have to be promoted to a higher court or else terminated), it most likely wouldn't matter how or by whom they were appointed.

I do like the idea of electing judges, but only from the standpoint that the alternative (gubernatorial appointment) essentially means handing both the judicial and executive branches over to the governor.

A judicial election in a year in which there's no gubernatorial election ensures that the citizens are able to react, if necessary, to the governor's leadership. As for myself, I think it would've been more intelligent for the voters to have rejected Governor Doyle a couple years ago than Governor Doyle's judicial lapdog a couple days ago.

Blake,That's essentially the point I was making - reasonable people self-evidently differ as to what is or isn't reasonable. ;) Raich is an interesting case; Scalia's argument - it should be remembered that he did not join the majority - hinged on the necessary and proper clause. He noted that the court's "cases show that the regulation of intrastate activitiesmay be necessary to and proper for the regulation of interstate commerce" in some circumstances. That's accurate as a descriptive question of what the court has held in the past, and it's by no means an unreasonable construction of the sweeping clause, the office of which, as was universally understood at the founding to judge by both the Federalist papers and the antifederalist papers, is to grant Congress the power to go further than its enumerated powers if the efficient execution of those powers so requires.

I have honestly never made up my mind whether I agree with Scalia or Thomas in that case (I will say that I share Ann's misgivings about Justice O'Connor's opinion therein, see Althouse, Why Not Heighten the Scrutiny of Congressional Power When the States Undertake Policy Experiments?, 9 Lewis & Clark L. Rev. 779 (2005)), but in truth, I think Scalia probably has the best of it. If I was forced to make a decision today -- the late Chief would reportedly tell the conference towards the end of a term "ladies and gentlemen, it's time to stop thinking and start writing"; at some point you have to decide -- I think I'd likely join Scalia's opinion. With misgivings. I'd overrule Wickard (unlike Scalia); I'm not prepared to overrule M'Culloch. In any event, however, I don't think Scalia's opinion is a "strict" construction, and for that matter, I'm not wholly persuaded that Thomas' opinion is either.

Lastly, I think that it's not necessarily true that "strict construction" is a synonym for "when in doubt, cut toward less government power"; I agree with you that the latter is generally a good principle, but it's a normative principle, not one that necessarily follows the Constitution. The Constitution is a grant of power; limited powers, to be sure, but a fair reading of it denies Randy Barnett's idea that it's some kind of libertarian charter. The federal government is given limited but broad powers, there's just no escaping that if you give the Constitution a fair reading; your principle is good and reasonable, but it's not a result that the Constitution demands in the way I think that you - and the very god company you keep in so arguing - are suggesting.

I love to wonder when I read a lot of the nonsense spouted above if certain constituencies would be happier if the court system merely became another congress with the mandate to hear disputes and render political judgments.

If the courts are there to reflect political philosophies (what pray tell is an ultra-liberal??) then they are some ultra-extension of an ultra-political process. what person seeking the bench wants to be an "ultra" first rather than a judicial Solomon. What ultra-mindset goes on here that the ultra-ultraness is more important.

You lawyers are a silly bunch I have to tell you. But you are ultra-skillful in making this sow's ear of an ultra-politicized judiciary seem like the silk purse of public will.

Elliot A - I don't believe election of judges is a good thing, since it does make the election one of ideology and not qualification. It is a good idea to have the people vote on whether they remain on the bench. For qualification, only people like Ann could properly understand if their history shows good judicial behavior or not. 99% of the public hasn't a clue. Yet, after five years or so, the public can sense if a justice has ventured down a path different from the general values of the public, and could remove the judge from the bench. The governor could then select another, knowing their will be legislative scrutiny and hoping to avoid the embarassment just endured.

I agree. Great post.

States voters are under no obligation to follow the US Constitution's asinine creed that Federal judges are Lifetime Gods over the masses who can do as they wish.

The ability to recall judges who are failures, incapacitated, who betray what was understood to be their judicial philosophy when nominated - makes sense.

We would also hugely benefit if we changed the Constitution and ended the lifetime aristocracy of Federal judges - subjecting them to reappointment every 10 years, and having a means of replacing them if the President and a supermajority of Congress determined that they had a bad Fed judge, or judge who was a poor performer, even badly out of touch with present jurisprudence and society. Even SCOTUS Justices.

An example or two might be William O Douglas, who was incapacitated on the bench for 3 years and no longer working - by severe strokes - but kept in by his handlers and his own determination not to resign until a Democrat was elected.Or Souter, who quickly showed he was a turncoat, and would have faced a recall with virtually no Republican support.

I did a big research paper on this in law school and I had no agenda going into writing it. If anything, I was for merit-based selection by committees because my professor was a strong believer in that.

I actually read a ton of scholarly literature on the subject. I concluded that, like with everything else, democracy is the best thing here. It's messy and problematic but the judiciary affects people's lives just as much as the legislature and the executive, sometimes dramatically more so.

I believe that, at all levels, direct democratic election with fixed terms and reelection is the best-case scenario. Second best is legislative appointment with direct retention elections. The worst situation is merit-based committees that select judges who get rubber-stamped by the executive with no legislative input whatsoever.

I love to wonder when I read a lot of the nonsense spouted above if certain constituencies would be happier if the court system merely became another congress with the mandate to hear disputes and render political judgments.

"Became"? The courts have been doing pretty much that for quite a while now. That's why I tend to think judges ought to be elected -- if they're going to legislate from the bench, I'd at least like a say in who is doing the legislating. :)

Lastly, I think that it's not necessarily true that "strict construction" is a synonym for "when in doubt, cut toward less government power"; I agree with you that the latter is generally a good principle, but it's a normative principle, not one that necessarily follows the Constitution... [I]t's not a result that the Constitution demands in the way I think that you - and the very god company you keep in so arguing - are suggesting.

The phrase "strict constructionist" is actually one I heard a lot in grade school history classes, and not again until Scalia. This makes it suspect to me, since what I learned that wasn't math and wasn't science tended to range from slanted to outright false.

But what I recall was that the original parties were split along "loose" and "strict" constructionism, with the Jeffersonians on the "strict" side and the Hamiltonians on the "loose" side.

Whether or not that has any historical validity, I don't know, but that was the standard line I got.

But what I recall was that the original parties were split along "loose" and "strict" constructionism, with the Jeffersonians on the "strict" side and the Hamiltonians on the "loose" side.

This was true rhetorically during the Washington and Adams administrations. (mainly because of Jefferson's opposition to a national bank)

But as soon as Jefferson became president things changed. Among other things, Jefferson's purchase of the Louisiana Territory violated the Constitution according to the rhetoric he was using a few years earlier.

Seven Machos said..."I did a big research paper on this in law school and I had no agenda going into writing it. If anything, I was for merit-based selection by committees because my professor was a strong believer in that. "

The problem with merit selection is that we'd first have to agree on what constitutes merit. Half the country sympathizes with Obama's idea that a judge ought to have heart, to the point of evading the text to rule for an sympathetic litigant. To my mind, that's an atrocious way for a judge to behave, but half the country think it has a lot of - wait for it - merit. To my mind, the federal system remains the best option, warts and all. The only way it could potentially be improved would be to amend Article III such that judges are confirmed for a lengthy but non-renewable term - say eighteen years. This country is far too fixated on the Jacksonian notion of more democracy as necessarily better democracy, in my view.

Cedarford, what's your basis for claiming Souter as a turncoat? No one who reads the transcript of his confirmation hearings could seriously claim that he deceived the committee as to his views, and most accounts of the nomination suggest that he didn't have the opportunity to lie his way into the nomination had he been so inclined - no one asked him the right questions. Don't blame David Souter for David Souter. Blame Luttig and the DoJ screeners, Sununu and Bush - but it seems to me that Souter himself did nothing wrong, and has been a really good (if wrong) judge. Which highlights again the problem with merit selection: Souter is a very meritorious judge, in terms of technical skill. But that misses the bigger picture, a picture that necessarily involves questions about his views on the job, precisely what merit selection deprecates. The idea that all skilled and meritorious judges are fungible is quite peculiar.

Judges are frequently in the business of telling the majority to take a hike, as Scalia well-put it; to put them in the position of knowing they're going to have to go hat in hand to the very same majority is to create perverse incentives. Human nature being what it is, a Supreme Court that had to face retention elections probably wouldn't have decided Crawford the way it did, for example.

Thanks for your questions and your bracketed adjunct to my ghetto English. But let’s face facts. Your query was merely rhetorical, your curiosity was facetious, and your real meaning was that Ann Althouse did not, in fact, say that corporations should be treated more favorably by the state’s Supreme Court. I get that.

Guess what? My statement was also facetious, and I recognized that she had not stated that. The WSJ editorial, which Althouse does refer to, argues for more favorable treatment for corporations, but not in the sections she excerpted.

Althouse does state that retail politics should pick our Supreme Court justices (she will always recoil at any outsider attempt to state her implications, and in doing so deploy a smug image of intellectual detachment and a condescending clarification that her framing of the issue was narrower and her distinctions she was drawing finer than others have the intellectual instruments to pick up – oops, sorry Simon: . . . than up with which others have the intellectual instruments to pick.)

So, therefore, if we are now in the realm of retail politics, let’s cease to pretend that we are in the realm of a Socratic dialogue. Let’s also stop pretending that her blog exists for the reason a law school seminar exists. In politics, not all is as it seems. Motives are ulterior. Althouse is a conservative blogger, building a brand and currying favor with a target audience.

Her post was a posture, fuzzily sidling up next to those who supported the campaign for Michael Gableman, who as a candidate and judge is a cipher. The Svengali here is the organization Wisconsin Manufacturers and Commerce. They sought his election in order to benefit business and to diminish the success of tort cases. WMC calculated that “the voters” could be swayed, not by sympathy for corporations, but by propagating the redneck tendency to want to think accused criminals are criminals, and that defending accused criminals is blameworthy.

The issue at play, and which Governor Jim Doyle was addressing, was an evaluation of the tactics used by those who promoted Gableman. Here’s a smug and fine distinction for you, Althouse style: You can support elections rather than appointments to choose state Supreme Court justices and still criticize the tactics by a group that supports a judicial candidate in one of those elections. These WMC tactics included (among worse messages) the implication that suspected criminals should not be defended.

Ann Althouse knows this, and serves to advance this strategy by her sin of omission. Forgive me Simon, but my comment was not addressing Althouse as Phaedrus might address Socrates. Rather, I threw that comment in there as one person who did not just fall off the political turnip truck to another such person.

Well, I'm glad that you recognize that your criticism is based on something that she didn't actually say. Of course, you then go on to criticize her for something else she didn't say: "Althouse," you tell us, "does state that retail politics should pick our Supreme Court justices." That is neither stated nor implicit in her post, of course, but why let that be a limitation? It's so much easier to attack people when you liberate yourself from the confines of what they've actually said. If Althouse doesn't say something that can be criticized, one can rail at her for "sin[s] of omission," a time-honored tactic of the anti-Althousiana ("why didn't you blog about X? You! A law professor!"). Not very persuasive, though.

Why is it that some people can't accept that they don't have a monopoly on what's interesting and worth writing about in news stories? Bemoan Butler's defeat, fine; and if you want to think the most interesting thing about the race is who gave one candidate money and why, fine. Write about that. But to get all on your high horse because another blogger finds something else in the story more interesting and worthy of writing? So many of the criticisms of Althouse boil down to "why won't you just toe the line, bitch."

Half the country sympathizes with Obama's idea that a judge ought to have heart, to the point of evading the text to rule for an sympathetic litigant.

Judges are always going to sympathize with one point of view -- people they can identify with, people like those they grew up with, people like their friends and their golfing buddies. We already have one Justice with Dick Cheney for a duck-hunting buddy. The current court sympathizes too much with corporations and less with individuals, as the reading of non-existent Congressional intent in Medtronic shows. Let us get more justices who grew up poor, like Clarence Thomas.

You cite Medtronic, but I'd point to Ledbetter for an example of the kind of thing I'm talking about in my post that you quoted. No offense to Kevin Russell, who did the best he could to bail out the Titanic with a teacup, but Ledbetter was an incredibly easy case; to rule for Ledbetter, the court would have had to completely ignore the text of the statute and construe the explicitly limited filing period so as to place no limit on the period in which one can file. That would be a preposterous result. There was simply no way to read the statute in good faith and get the result Ledbetter wanted. But Ledbetter had quite obviously been the victim of an injustice, and nothing so ephemeral was going to stop Justice Souter and the Usual Suspects from adding a tour date at the Lily Ledbetter arena, where the band's guitarist, Justice Ginsburg, treated us to a virtuoso rendition of their number one hit It Ain't Fair (Baby Please Change Your Mind) dedicated to all you crazy fans out there in the United States Congress.

Many governors don't know (or care) much about the qualifications of judges or their judicial philosophy (as distinct from their political ideology). Therefore, many governors use judgeships simply as a way to reward contributors and political supporters, without much regard for their impact on the process of litigation.

Elections allow voters to check the carelessness of Governors, and allow voters the opportunity to check corrupt, incompetent judges, and those who decide to substitute their own personal whims for the law.

A tragedy occurs when voters are bamboozled into giving up this check on the imperial power of the judiciary.

Here's a suggestion. Have judges appointed by governors, but give the public a simple up-or-down vote -- every four years, say -- on whether or not to fire them. Forbid the governor from appointing any judge who had previously been fired in this manner.

In Washington State judges are elected, but they can't campaign. So every ballot you've two judges up there, and unless you have some reason to have been following their cases you have no idea which to vote for.

This system, I think, is worse than appointing judges, as it will favor the incumbent.

I'll confess to being confused by that: Do they keep defining 100 IQ by the average? So your IQ score would change according to changes in the population?

My understanding is that IQ has gone up in the past century (perhaps proving conclusively that IQ does not directly correlate with smarts or wisdom), so unless they've been adjusting, the average would not still be 100.

Gabriel -- I have a substantial background in raising hundreds of standardized scores hundreds of points. IQ is test that can be gamed and improved, like an SAT or an LSAT, and if it can be gamed or improved then, like the SAT and the LSAT, it's not a legitimate measurement of intelligence.

Machos, ANY test can be gamed if you know in advance what it is testing. That doesn't make the test illegitimate. It just means it is possible to cheat.

Nobody thinks of IQ as an absolutely precise measure of intelligence. But, like the SATs, it correlates very strongly with all the things we associate with intelligence. It might not be precisely measuring intellect, but it roughly approximates it.

The NFL Draft is soon and the gold standard measurement for the NFL Draft is the 40 yard dash.

If a player goes from a 4.41 40 yard dash to a 4.28 40 yard dash, we do not say the player cheated. Yet how did that happen? Obviously, the player practiced? What did the player practice? Probably quite a bit of...dashing.

And yet, when it comes to intelligence, practicing is called cheating. That's a curious, fixed, and very artificial way to view things. It's almost like a certain segment of the population -- the kind who understand the little games better at first -- want to keep the others down by telling them they aren't as intelligent.

Only to a liberal are free elections a tragedy. Scratch the surface of a credentialist liberal and you'll find an autocrat contemptuous of democracy wherever the popular will does not match their own. They believe their credentials entitle them to rule.The kind of people who oppose judicial elections are the same ones who oppose the initiative, referendum, and recall ... usually in the name of "good government".As if. They don't know the meaning of the term.